23 December 2002
ART published today the decision adopted in its 17 December ruling on a dispute between Tele2 France SA and Orange France concerning an MVNO agreement.
The dispute concerned a request from Tele2 France that Orange France be required to provide Tele2 France a service based on the "extended MVNO" model, which is the most extensive form of the permanent hosting service on a network, based on the types of MVNO models analysed in the report published on 22 March 2002 by the Commission consultative des radiocommunications.
In its ruling, ART noted that this request is not covered by current Community law or French legislation, regarding the right to interconnection or access, and that, as a result, Tele2’s request is not admissible.
However, ART emphasized that the conditions of integrating an MVNO activity in the dynamics of the mobile market might be evaluated under the new legal framework to be created by the transposition of directive 2002/19/EC.
At that time, ART would have to examine a set of elements which are not currently sufficient as presented in the case.
This evaluation could benefit from the lessons learned in the market analyses ART will be required to conduct under article 16 of the "framework" directive 2002/21/CE.
The evaluation will also depend on the state of development of mobile multimedia which is now in its infancy and on its impact on the intensity and renewal of forms of competition in the mobile arena, based on a number of givens which must be preserved and developed.
It will also have to take into consideration a just balance between the right to access and an owner’s right to use its infrastructure to its own advantage. This consideration is even more important in the area under dispute because of the major material and commercial investments involved in developing multimedia in general, and the current difficult financial situation.
The technical impact of hosting MVNO will have to be taken into consideration, as well as the consequences in terms of capacity and resulting additional investments, which can vary depending on the position of the host operators on the market being considered.
Finally, observations and analysis on the part of all concerned players of market developments should help us better identify the forms of MVNO which are most likely to play a dynamic and value-creating role in the development of competition.
ART intends to closely follow these developments and continue discussions on this topic with all players.